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Everyone said Hussein Nur, age 19, was a fine young man, smart, athletic, and a leader among his high school peers. Unfortunately, Mr. Nur was caught by the Toronto police with a working 22‑calibre semi-automatic gun with an oversized ammunition clip. There were 23 bullets in the clip and one in the chamber. When working properly, this prohibited firearm fires 24 rounds in 3.5 seconds. Nur, a first-time offender, was arrested and plead guilty to possession of a restricted weapon. He was sentenced to the mandatory minimum sentence of 3 years prescribed by the Criminal Code.

Sidney Charles was also arrested when Toronto police found a loaded Ruger semi-automatic handgun and ammunition in his bedroom. It was equipped with an over-capacity magazine, a prohibited device under the Criminal Code, containing 13 rounds of live 9-mm ammunition. The gun’s serial number had been scratched off. As a career criminal with multiple criminal convictions he was sentenced to 5 years imprisonment, the mandatory minimum for a repeat offender.

Both accused argued that the imposition of mandatory minimum sentences as prescribed by Canada’s Criminal Code constituted “cruel and unusual punishment” and ought to be struck down as unconstitutional. Their cases wound their way up to the Supreme Court of Canada where six Justices agreed the law could not survive Charter scrutiny, although neither accused had their sentence reduced. (R. v. Nur 2015 SCC 15)

Perplexing isn’t it? The Court held the law was unconstitutional, but the minimum mandatory sentences were appropriate for each of Mr. Nur and Mr. Charles. How could the law be unconstitutional if the mandatory sentencing scheme was not cruel and unusual punishment?

Very simply, six Justices, Chief Justice McLachlan, LeBel, Abella, Cromwell, Karakatsanis and Gascon JJ. held that while the Nur and Charles’ sentences fit the crimes, there may be other cases where it would be “cruel and unusual” so better to get rid of the law now, before those cases occurred. Yes, the Court concluded that a minimum sentence may be challenged based on the circumstances of the offender before the court, or on other persons in hypothetical situations who may reasonably be caught unfairly by the law, such as persons who may commit minor licensing infractions without moral turpitude or danger to the public.

To that proposition three dissenting Justices, (Moldaver, Rothstein and Wagner JJ.) vigorously objected, declaring that the weapons applicable to mandatory sentences “have few legitimate purposes and are commonly used by criminals to devastating effect. Yet, despite Parliament’s valid and important objectives, the majority would declare these mandatory minimums unconstitutional on the basis that, in “reasonably foreseeable” cases, they could lead to grossly disproportionate sentences in violation of s. 12 (cruel and unusual punishment) of the Canadian Charter of Rights and Freedoms”.

The dissenters take issue with the majority’s suggestion that innocuous licensing cases, that may or may not occur, support the striking down of the mandatory gun law, keeping in mind Chief Justice McLachlan’s statement that “gun-related crime poses a grave danger to Canadians.”

They note that Section 95 of the Criminal Code was enacted in 1995 and has been in force for nearly two decades. They say it has always included a mandatory minimum sentence for cases prosecuted by indictment. Since 2008, it has included the present three-year and five-year mandatory minimums. The Criminal Code gives prosecutors the option of proceeding with a matter by indictment or summarily, a discretion that abounds in the Criminal Code. Summary proceedings do not attract mandatory minimum sentences. They point out the unlikely probability of the majority’s concerns:

“And yet, the respondents Mr. Nur and Mr. Charles are unable to point to a single licensing-type case over its entire history where a mandatory minimum imposed under s. 95(2) could be regarded as grossly disproportionate. Moreover, they cannot identify a single case where an offender who has committed a “licensing offenc[e] . . . involv[ing] little or no moral fault and little or no danger to the public” has been prosecuted and subject to a mandatory sentence.”

In an unusual departure from Supreme Court of Canada protocol, the Chief Justice remarks that she has read the dissenting Reasons in advance and criticizes the dissenters’ opinion:

“I add this about my colleague’s proposed framework. The protection it offers against grossly disproportionate punishment is illusory: in practice it would create a situation where the exercise of the prosecutor’s discretion is effectively immune from meaningful review. The abuse of discretion standard is a notoriously high bar and has no place in this Court’s jurisprudence under s. 12 of the Charter. The proposed framework would be a radical departure from the constitutional framework in these cases, and offers scant protection from grossly disproportionate sentences being imposed on offender.”
Commendably the dissenters express the obvious: That it is our elected representatives who are responsible for making Canada's laws and "it is not for this Court to frustrate the policy goals of our elected representatives based on questionable assumptions or loose conjecture."

Alas, the majority rules, as it should, but the polarization of the Court's judges is worthy of note, as is the majority's propensity to once again turf Stephen Harper's "law and order" agenda.